ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00021765
Parties:
| Complainant | Respondent |
Parties | Josh Braybrooke | Department of Employment Affairs and Social Protection |
Representatives | Self | Venetia Taylor BL instructed by Chief State Solicitor's Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00028560-001 | 20/05/2019 |
Date of Adjudication Hearing: 06/11/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment as a Clerical Officer in the Civil Service on 29/01/2018. His contract was a 12 months probationary contract. This complaint was received by the Workplace Relations Commission on 20th May 2019. |
Summary of Complainant’s Case:
The complaint is about how the Complainant’s employment was managed while he was on probation and his claim is that had his employer continued to provide him with a reasonable accommodation there would have been no issues with his work.
The Complainant disclosed his mental health issues to his line manager after being in employment for roughly 2 months. His mental health issue relates to depression and anxiety. The depression did not have an impact on him at work, however his anxiety caused him to suffer from panic attacks and those caused him to feel severely ill for short periods of a few minutes. Once the panic attacks pass he is perfectly fine to get on with whatever it is he is required to do. Due to the nature of the work he was involved in he was subject to some panic attacks and increased anxiety in the workplace.
After this disclosure he was provided with a reasonable accommodation which allowed him to take breaks away from his desk in order to cope with any episodes he was suffering at that time. This gave him a few minutes to allow the panic attack to pass so that he could return to his desk, able to continue with his work. He was also placed into work areas that didn’t involve a high amount of contact with the public and when he was transitioned onto public counters he was offered a great amount of support to ensure that he was coping well in this capacity. After 5.5 months of employment the Complainant was assigned a new line manager as the former line manager was promoted to another office. Under this new line manager, he was no longer being granted this reasonable accommodation to assist him with coping with his anxiety and the breaks that he required away from his desk to allow the episodes to pass were marked down on his record as a performance issue. It was also noted as a performance issue that he took longer to train on certain tasks in comparison with other workers and required too much support to enable him to function in the workplace. These performance issues were cited as reason for his performance review being marked unsatisfactory and was the subsequent cause for his dismissal. However, if he had been provided with the same reasonable accommodation that he was being provided with initially he does not believe there would have been any issue with his work, as there were no issues with his performance that had been noted or brought to his attention before the change of line manager. The only real change that coincided with the line manager change was that he was no longer being provided with an accommodation to enable him to perform well in the workplace. A more detailed description of events with dates and reference to supporting documents is outlined below. Detailed Summary The Complainant was hired to work as a Clerical Officer in the Department on 29th January 2018. The Complainant was diagnosed with depression and anxiety disorder when he was 19 years old and this is an ongoing illness which affects him most in social interactions. When he was first hired he chose not to disclose his illness at the time as he did not feel it necessary to do so.
When he first arrived in the office he was told that they were not expecting him and did not have any training organised for him. It took a good few weeks for anything to be organised and in the interim he sat at the reception desk observing the people working in the hopes that he would be able to pick up on a few things.
With the Complainant just sitting there observing his colleagues in reception he became increasingly anxious in the workplace as he saw some aggressive customers come in and interact with the staff. This caused him to start feeling sick with anxiety and requiring breaks away from the reception desk at various points of the day. His line manager at the time, noticed his discomfort and noticed that he had been leaving his desk and brought him into her office to discuss. This meeting happened on 17th April 2018 during this meeting the Complainant disclosed his mental health issues to the manager to advise her how he was feeling in the workplace and to tell her that walking away from the desk for a few moments helped him feel more at ease. During this meeting the manager suggested that he contact the Civil Service Employee Assistance Officer to discuss this issue as they may be able to provide him with support. After this the manager started checking in with him frequently to see how he was feeling. The Complainant was allowed to take breaks when required and was moved onto a special project (that he had been working on in a temporary capacity) to a more full-time basis to keep him off public counters for a while to help him feel more at ease in the workplace. After a while of doing just this special project he was moved onto reception cover on some days to slowly get him comfortable with working on public counters. He was then slowly transitioned onto another area of public counter (desk 5) and trained on this area until he felt comfortable enough to move on. All of the above was being provided to him as a reasonable accommodation and allowed him to function normally in the workplace. In mid-June he was advised that the line manager had been promoted and would no longer be his line manager she was to be replaced by another person. On 29th June 2018 he was called into a meeting with the outgoing and incoming line managers present. This meeting was his 6-month probationary review. During this meeting he was advised that his performance in work was satisfactory and it was mentioned that over the next few months they planned to train him on more duties in the office and start to put him onto some more forms of public counters. On 9th July 2018 the new person became his line manager and there were some immediate issues between her and the Complainant and the way in which she interacted with him made him feel harassed and bullied in the workplace. The Complainant had this new line manager for 3 weeks and in this time began to feel as though the work environment was becoming increasingly hostile which led him to feel an increased amount of anxiety in work, especially when the line manager interacted with him, as the way that she interacted with him made him feel harassed and uncomfortable. On 30th July 2018 the Complainant was called into a meeting by one of the senior managers. He heard that the Complainant felt he was being bullied by his line manager and wanted to discuss with him at the time and take examples of any issues he had. In this meeting the Complainant felt his concerns were disregarded and he was advised to be careful about making bullying accusations as it wouldn’t look good for his career. At the time, he took this as a threat and was uncomfortable with the idea of submitting a complaint in an official capacity for fear of repercussion. After this meeting, it occurred to the Complainant that he had not made an official disclosure of his mental health issues to his new line manager, so he made another disclosure to his new line manager on 30th July 2018 as he was unsure if she was aware of his mental health issues and how they affected him in the workplace. The Complainant believed if she was aware of how the she was interacting with him was having a negative impact on him, perhaps the issues could be resolved. The Complainant received a response from two line managers. In the response he felt as if the statements he made regarding how the interactions were negatively affecting him were disregarded. As in the response instead of attempting to discern what part of the interactions made him feel as though he was being treated in a hostile manner or perhaps discuss ways that could ensure that both interacted with each other in a way to ensure both felt comfortable, she responded with the following comment which essentially disregarded the concerns raised as being nothing more than his perception “if your perception is that I do not like you or I am “singling you out” all I can do is reassure you that that is only your perception and is subjective”. Through a data access request made to the HR department the Complainant was sent some correspondence regarding him that was sent from one of the managers to his current line manager. In this email it makes it clear that the managers were previously aware of any mental health issues before his disclosure. The Complainant is unsure as to why the accommodations he was being provided with by his former line manager, were no longer being provided. On 1st August 2018 the Complainant was called into another meeting with the senior manager regarding the email he had sent on 30th July 2018. The manager perceived this as an official complaint and advised the Complainant of such and asked if he wanted to have this resolved internally and he agreed to seek an internal resolution through discussion rather than submitting a complaint to HR. The Complainant was then advised that there would be a meeting to discuss and resolve these issues the following day. Following on from this meeting the Complainant suffered a severe panic attack as a result of the multiple meetings and emails he had received from managers in the days previous which made him feel extremely overwhelmed and as though he was going to collapse in the middle of the office.
When the Complainant had this panic attack he had to rush off the floor as he felt he was going to be sick. He had only enough time to ask the person next to him if they could cover his desk for a few minutes then ran off the floor. On 2nd August 2018 the Complainant was called in for another meeting and had been advised prior to attending that this meeting was to resolve any issues between himself and his line manager and it was being facilitated by the senior line manager. However, when he arrived at the meeting he was advised that it was not a meeting to discuss the issues he had raised in his email, but it was in fact a performance review. The Complainant was not previously advised that there would be a performance review and as far as he was aware the 6 month review had been completed the month previous and his performance was found satisfactory. In this meeting the Complainant was advised that the first review was held pre-emptively and that the official one that would be saved to his file would be done there and then. The Complainant was then failed in his probationary review during this meeting and advised it was due to there being many issues with his performance. He was not aware that there were issues with his performance as he had not been advised of this previously and when he asked for specifics on these issues he was not provided with any specific details on issues or any course of action he needed to take to rectify the issues with his performance. The Complainant was advised in this meeting that how he dealt with his panic attacks was unacceptable and that it was a serious issue that he left his desk due to his anxiety. On the written review one of the issues cited was “He has disappeared from his post several times a day with no explanation”. This was included in the review even though it had been previously communicated that these breaks were to facilitate his condition. The Complainant was also advised that if he needed to leave his desk due to panic attacks he had to locate his line manager specifically (wherever she was in the building at the time) and get her permission to take the break. He advised that due to the nature of the illness that would not be possible but he could locate the nearest manager at the time and advise them, he was told that this wasn’t good enough and it had to be his line manager if he needed a break which he found to be highly unreasonable and an impossible request for him to fulfil.
During this meeting as no specific details regarding issues with his work were provided to him the Complainant started keeping a log of work done throughout the day and sent it to his line manager for review requesting that she advise him what he was doing that he shouldn’t be or what he wasn’t doing that he should be. Not only was he not provided with advice on where the issues were and what he needed to work on he was told it was not appropriate for him to keep such a record and was advised to stop keeping track of work done. No written notes of this meeting were provided to the Complainant after the meeting was concluded. Following on from the above events, the Complainant felt as though he was no longer able to work in the current environment he was in as he had to increase his anxiety medication twice to help him cope with the issues he was having in the workplace. He went to see his GP and received a letter from the Doctor to give to HR to advise that his work situation was causing him stress and to request that he be moved to a less stressful office / section. The Complainant sent an email to HR to officially disclose his disability and to provide them with the letter from his GP. He received a phone call from the Dignity at Work section of HR to discuss the issues he had outlined in his email to them and was advised over the phone that a move to another section would not be possible and was advised that unless he submitted a full official bullying complaint that they could do nothing to assist or investigate the issues he had raised. The Complainant was advised that they had scheduled an appointment for him with the Chief Medical Officer (CMO) and that he could discuss the issues and the GP letter there. The Complainant also received a workplace accommodation form from HR however he contends that he was unable to have this form completed as they wouldn’t accept it if it was completed by a GP and it needed to be completed by a specialist. The Complainant was and still is on a waiting list to see a specialist to help him deal with his illness, so he claims it was not possible to have this form completed. On 6th September 2018 the Complainant went to see the CMO (for what he thought was a discussion regarding the GP letter) however when he arrived he discovered that he had been sent at the request of his line manager to determine if his mental health issues made him unfit for work. The CMO had also received a report from HR detailing various behavioural issues that the Complainant had apparently had and reference to various incidents in the work place. At the time the Complainant disputed and still disputes the accuracy of the information received. The CMO declared that the Complainant was fit for work. Through the data access request that he submitted to HR he received a copy of the CMO documents which included the CMO report that was sent to HR from the CMO. The CMO report stated: “management should consider supporting his learning requirements in the roles he finds challenging. If despite continued support and training, he continues to be unable to meet the required standards of performance, management should decide if you consider this reduction in performance to be a reasonable accommodation given his declared health condition”. A training plan was mentioned in the 6 month performance review. However, there was no official written plan put in place where it was outlined to the Complainant what specific training would be provided, what tasks he would be expected to be able to achieve at the end of the training and he was not given details on what the expectations for him were at the end of this training. Furthermore, he was only aware that he was to be trained (and what he was to be trained on) when he checked the rota for that week and saw that he was due to be trained. The training that the Complainant was provided was by all different people at different times (apart from Desk 6 training which was mostly by the same person). All of the training was at the same time - so rather than being trained on one thing then moved onto the next, he was trained on everything all at once. All of the training was in a live environment and as the people training the Complainant were dealing with customers he did not have the opportunity to ask questions when they did something or ask something which he did not understand. They also did not have the opportunity to talk him through what they were doing. When the Complainant queried the possibility of them taking the information from customers and then working through the claim process in the background with him while allowing him the benefit of them talking him through what was to be done, why it was to be done and advising him of things to look out for he was advised that this type of training was not possible. When he asked if it would be possible for him to try doing the work and for them to talk him through it as he felt that he would learn better in these situations, he was again advised that this type of training was not possible. Given the way that the training was scheduled and the way in which it was executed the Complainant feels as though it was done in such a way to purposefully overwhelm him with training on multiple duties at once, and he does not feel as though any effort was made to facilitate training him in a way that suggested he would have been most comfortable with. Even though the CMO report advised that an effort should be made to facilitate the Complainant’s learning requirements. Furthermore, he was the only person in the office to be trained on so many points of contact all at once. On 2nd November 2018 the Complainant was invited to his 9 month and final probationary review meeting. Both his line manager and her line manager were present at this meeting. At this meeting the Complainant was advised that his performance was unsatisfactory. In this meeting he requested details of the issues with his performance on which he was being found unsatisfactory. He was handed a piece of paper with the details of the six month and nine month probationary review that would be uploaded to his file to HR. The Complainant contends that this was the first time he had received a copy of the 6 month review. During this meeting the Complainant repeatedly requested details of the performance issues and was repeatedly advised that the managers would not go into detail. During this meeting the Complainant’s line manager made reference to issues that had been previously discussed with him in an earlier meeting. This was reference to a meeting that occurred on 8th October 2018 when he had been trained on multiple duties and had made an error with the new tasks he had been assigned. At the time of this meeting he was not advised that these issues were serious performance issues, He was advised that they were little mistakes to keep an eye out for going forward. If this was an issue that warranted termination, then he should have been advised as soon as it occurred. In the meeting on 2nd November 2018 when I repeatedly pushed for details of the issues with my performance, specific reference was made by Stephen to a meeting we had in his office regarding an allegation. The allegation he was referring to is where I advised that I felt I was being bullied in the workplace. In the meeting with both, they made it clear that my declaration that I felt I was being bullied was being conducted as a performance issue.
When I advised in this meeting that me leaving my desk was due to my requirement to leave for a few minutes to cope with my anxiety it was explicitly stated “if anxiety affects you being on counters and stuff then that means it’s an issue”.
In the written review it was explicitly stated that my anxiety affected my ability to be trained. “This may be due in part to his inability to embrace training in his first six months due to his disclosed anxiety which meant he left his desk frequently for periods”.
Note
As the managers in the office did not keep or provide me with notes of the meetings had and had a habit of at a later date citing events or discussions that did not occur I started recording any meeting held between myself and the managers from October 2018 onwards as I felt this was the only way to ensure that an accurate record of the meetings would be available.
As such I have tape recordings of the meeting dated 8th October 2018 and the 9 month probationary review dated 2nd November 2018. For the purposes of full disclosure, these were covert records that I made without the knowledge of the managers present at these meetings.
From online readings I am aware that submission of covert recordings by employees of employers can be accepted by the WRC as evidence in cases if the Adjudication Officer feels that there was sufficient cause for the covert recording to be made and that the information on the recording is pertinent to the claim submitted. |
Summary of Respondent’s Case:
Claim The Complainant has submitted a complaint seeking adjudication by the Workplace Relations Commission (WRC) under Section 77 of the Employment Equality Act, 1998. The details provided in the Complainant’s submission assert that under the Act he was discriminated against by the Department on the grounds of disability; that he was victimised; that there was a failure to give him ‘reasonable accommodation’ for a disability; that he was dismissed for discriminatory reasons; and that he was discriminated against because he opposed discrimination.
Summary of the Complainant’s employment.
The Complainant was recruited as a Clerical Officer (CO) in the Department on a one-year probationary contract. A probationary contract for a new entrant states that ‘during the probationary contract, your performance will be subject to review by your Manager(s) to determine whether you: have performed in a satisfactory manner; have been satisfactory in general conduct and are suitable from point of view of attendance with particular regard to sick leave. Prior to completion of the probationary contract, a decision will be made as to whether or not you will be retained pursuant to Section 5A (2) of the Civil Service Regulation Acts 1956-2005. This decision will be based on your performance assessed against the criteria set out above’.
A summary of the Complainant’s employment is as follows:
The Department’s Probation and Performance Management Development Process
New entrants to the Civil Service are recruited on a one-year probationary contract and subject to three formal probationary reviews at 3, 6 and 9 months. Local management also have the right to hold meetings at any time outside the formal review meetings to discuss performance. During the probationary period, officers are formally assessed by their local manager to determine whether they:
· have performed in a satisfactory manner; · are satisfactory in general conduct, and · are suitable from a viewpoint of attendance and sick leave.
All new entrants and their managers are reminded of these obligations on a number of occasions throughout the probationary period - in the contract of employment, at initial assignment and at 3, 6 and 9 months.
There is a Civil Service-wide electronic probation system known as e-Probation in operation. This system is operated by our HR Partners. The system issues reminders to both staff and managers when a review meeting is due. The system also allows managers and staff to access the details of probationary reviews.
At each stage of the probationary review process, the manager will evaluate whether an officer is performing to a satisfactory standard; whether improvement is required and identifying training and supports. At 9-month review stage a decision is made whether or not an officer on probation is considered suitable for confirmation in their post at the end of the probationary period.
Staff on probation are also required to participate in the Civil Service’s Performance Management Development System (PMDS). This annual process involves setting clear goals and objectives, assessing performance against these goals, assigning a rating (at the end of the year) and the identification of learning, development and training requirements. This process is also managed by the HR Partners through an automated system called the e-PMDS system.
The Complainant’s Probationary Period
Three-month review: Covered the period 29th January to 28th April 2018 The Complainant’s home office has a number of different functional areas and during the first week on the job, it is standard practice to let new employees observe how each of these areas operate - this gives an employee an overview of how the entire office operates. The standard training process which applies to all new employees in the office was applied to the Complainant. He was directed to the e-Learning modules on the Department’s staff intranet site and he was instructed to undertake the role of the Deciding Officer module and the Data Protection module. The Complainant also attended classroom based training (1 day) in the home office as well as on the job-training.
Having undergone this training and gained an overall understanding of how the service operates, the three-month interim review was completed by his local line manager. The Complainant’s overall performance was confirmed as satisfactory. Some areas of concern were raised as part of the review. The line manager noted that it had taken the Complainant:
“some time to settle into the office and his role. He has taken on work that he had expressed concern over and has executed the duties. I have spoken to him in relation to getting more involved in his duties and taking ownership of the role he is performing e.g. reception/deciding claims. I have asked him to engage with his team members and be available to take on duties when there is a lack of staff or when there are other priorities in the office”.
Whilst the overall review was ‘Satisfactory’, areas such as ownership of role, engagement with team and taking on duties were flagged for consideration.
Six-month review: Covered the period 29th April to 28th July 2018
Prior to the six-month formal probationary review meeting which took place on 2nd August, The Complainant met with his first line manager. She called the meeting to bring a number of issues to his attention - excessive tea-breaks, disappearing from his desk and not clocking out for lunch. When she enquired where the Complainant was when he was not at his desk, he advised her he suffers with anxiety attacks and “sometimes has to go to the bathroom to lock himself in”. The line manager offered her support but requested that The Complainant advise her if he was to absent himself from his desk. The line manager also recommended that he use the services of the Civil Service Employee Assistance Service with a view to helping him manage his anxiety. In an email dated 20th July 2018 the line manager followed up in writing with the Complainant on the areas in which improvement was required.
- She clarified it was not acceptable to disappear from his post for 15-20 minutes several times a day without informing her. - She clarified that tea breaks are 20 minutes in the morning and not longer, and that when having lunch in the canteen, he must be clocked out. - She requested he respond to emails sent to him by senior management. - He was asked to treat colleagues and customers with courtesy.
The six month review was completed by the Complainant’s new line manager.
The Complainant suggests in his claim that he had two six month reviews, a review meeting with his previous manager and the new line manager on 29th June 2018 and a second review meeting with his new manager on 2nd August with two different outcomes.
This is not the case. The former line manager and the new line manager met with the Complainant on 29th June. The former line manager was moving roles and had asked the new line manager to attend a number of staff meetings as part of a handover. This included the meeting with the Complainant and another staff member who was also on probation.
The meeting of 29th June was referred to invitation meeting request as a “probation review meeting”, however, it was not the Complainant’s formal probationary review meeting. The formal probationary review meeting was due one month later on 29th July, and the probationary review form, which is generated by the Civil Service e-Probation system, was not available for completion until this date. The new line manager recalled that at this meeting, the former line manager appeared to find the Complainant’s performance satisfactory, but he was advised that he needed to embrace his training and adopt a more professional approach and integrate with the team.
Shortly before the 29th of July, the new line manager received an automated email from the e-Probation system as well as direction from the HR Department that the formal probationary review was now available for completion. The Complainant was also advised of same.
The line manager proceeded to complete the formal probationary review based on her own observations, handover notes from the former line manager and in consultation with the Complainant’s first line manager and her own manager, the Assistant Principal.
The Complainant’s formal 6 month review indicated that his local line manager assessed him as satisfactory with regards to his sick leave, attendance and punctuality. She did identify issues with his performance and general conduct. These issues were documented on the probationary review form and included:
· Performance issues relating to quantity and quality of work; · Not responding well to instructions from supervisors and not supporting his team; · Issues with clocking in and not starting work, not clocking out at lunch and extended tea breaks; · Disappearing from his post several times a day with no explanation; and · Lack of progression in his roles and duties.
On the basis of the issues identified, The Complainant’s overall performance was assessed as ‘Unsatisfactory and needs to show improvement’. The line manager pointed out that if the Complainant embraced the supports being provided and applied a positive attitude, he could achieve a satisfactory rating [at 9 months].
The Complainant alleges that he did not see the six month review until 2nd November 2018. However, once the e-Probation form had been completed on the e-Probation system, The Complainant would have received an automated email advising him that he could access the form and its contents by logging on to the system. This form became available to him on the system on 3rd August 2018 and was accessible throughout the remainder of his probationary period. Therefore, he would have been fully aware of the issues raised at the 6 month review.
The line manager also made a note dated 2nd August 2018 following the review meeting. This note was for her own record, to document the issues that were brought to the Complainant’s attention at the review meeting.
These issues reflect what was noted in the formal probationary review and included office etiquette, integrating and supporting his colleagues, issues regarding the quality and quantity of his work, chatting to colleagues when he was meant to be working, going missing during the day, excessive tea breaks, and not clocking in and out for lunch properly.
Supports were agreed at this meeting which are also documented in the note of the meeting. These included suggesting the Complainant use the quiet room when feeling anxious, so he could have privacy, a recommendation that he be referred to the Department’s Chief Medical Officer and putting a more structured training plan in place. The Complainant was also encouraged to own his work, strive to achieve his goals and improve the quality and quantity of his work. The line manager noted that The Complainant agreed with the training plan but appeared negative in relation to comments about his performance and seemed angry and upset at times during the meeting. Efforts were made to assure him that supports would be put in place to help him achieve a satisfactory rating by his 9 month review.
The line manager met with the Complainant as a follow up to the review meeting on 13th August 2018. She made a note of this meeting. She noted that The Complainant seemed very angry and was focusing on the negative aspects of his probation and not the positive or the supports. The Complainant did not accept the issues raised and said that he felt that people were lying about him with regards to taking extended tea breaks and clocking out for lunch breaks. The line manager tried to encourage him to draw a line and move forward. However, the Complainant did not appear to want to do that and was upset. During this meeting, he swore at the line manager and she had to advise him that this was not appropriate.
At this meeting, the line manager brought to his attention some errors he had made in his work, including a data breach. However, the Complainant did not accept any responsibility for these errors and assigned blame elsewhere. The line manager explained it was her role as manager to advise staff of errors they make so that they could learn from them and prevent them happening again. A work plan for the week ahead was made, a training day with the Trainer was scheduled and he was asked to let the line manager know if he was struggling in any area in particular so that his training requirements could be tailored to his specific needs. The line manager suggested taking this opportunity to make a fresh start and that she wanted to be able to give the Complainant a glowing report at 9 months. She emphasised that he himself also needed to provide some positive input. However, he remained uncommunicative and angry during the meeting. Following this meeting, she checked in with him throughout the day to ensure that he was okay.
At this stage in the probationary process, the Complainant had not declared he had a disability apart from advising his first manager on the 18th of July that he took time away from his post as he suffered from anxiety.
Nine month review (final): Covered the period 29th July to 28th October 2018 Performance The nine month final review was carried out by the line manager. The review indicated that the Complainant was satisfactory with regards to his sick leave, attendance and punctuality. She identified issues with his performance and general conduct. These issues are documented on the probationary review form and his overall performance was assessed as ‘Unsatisfactory’.
Prior to the nine month review, The Complainant received on-going supports and training. Local management noted a number of areas of concern:
On 28th September 2018, the Trainer, advised the line manager that she had concerns about the quality of the Complainant’s work. She stated that the Complainant was not taking notes and was disorganised with regards to his tip sheets, which were designed to assist him. She stated that a customer had to travel from Ashbourne to the office on three separate occasions as forms had not been filled in correctly. When the trainer and the former line manager addressed this with the Complainant, he was confrontational. The trainer also advised that he was not taking instruction well and was taking a long time to train, relative to other staff who had started at the same time. It was also noted that he was emailing logs of his work, which he was collating during working hours, to his private email. The trainer was aware that he had been requested not to do this during work time. The Trainer noted that the Complainant also appeared distracted and was “staring into space quite a bit”.
Ms. K noted an incident on 5th October 2018. The Complainant was dealing with a customer in the office. He had a query related to this customer which necessitated him calling another section. It appeared that the section did not answer the query to his satisfaction. He was witnessed slamming down the phone and shouting the word “scummers” as he did so. This took place in front of the customer he was dealing with. The incident was witnessed by a colleague who advised him that he could not speak in this manner in front of customers.
On the same date, Ms. K noted another incident. A female customer came to the office with two forms relating to allowances. The Complainant asked in front of Ms. K and another colleague if these forms were to be completed in the ‘camera room’ as he had a “dopey woman” here. Ms. K directed the customer to another staff member to assist her in completing the forms.
The line manager and the Area Manager met with the Complainant on 2nd November 2018 regarding his final probation review. The line manager completed the formal probationary review form in addition, the line manager’s own notes of the meeting outline that the Complainant was very irate at the meeting and insisted he had done everything that was asked of him. He advised her that she had not made any allowance “for his social anxiety and paranoia”. This was the first occasion the Complainant had mentioned paranoia to the line manager. He stated that the line manager had not alerted him to any errors and could not recall a particular error regarding missing customer papers. With reference to a particular task of scanning and filing the Complainant stated to the line manager that she had subjected him to that “mind numbing work”. The Complainant had referenced this project at his meeting with the CMO and described it as ‘monotonous but easy’. She also raised the issue of him referring to his colleagues as “scummers”.
The ongoing lack of improvement in his work, despite training and supports, and his unwillingness to either take instruction or direction or accept responsibility for his mistakes, resulted in the Complainant being assessed as unsuitable for confirmation in post.
In relation to the formal 9 month probationary review form, The Complainant makes a specific claim which states ‘On the written performance review it was also explicitly written that due to my disclosed anxiety I was unable to be trained’’
This statement is not correct. The narrative of the 9 month review outlines that at 9 months, there were still errors in work and issues with customer service, despite the training and support provided. The Complainant’s manager referenced the fact that he was frequently away from his desk due to his anxiety and that he could not “fully embrace” the training provided. The manager also indicated that the Complainant did not take any ownership or responsibility for errors made by him. The Complainant, throughout the process, also appeared unable to take direction or constructive criticism in relation to any aspect of his performance. It was in the context of the feedback as a whole documented in the narrative that the manager was unable to say if further training would help him to reach the required standard. This is not a statement that the Complainant was unable to be trained due to his anxiety.
Recommendation of Manager and Appeal On the basis of receiving an unsatisfactory rating in his final probationary review, a letter issued to the Complainant on 6th November from Assistant Principal, HR Division. The letter advised the Complainant that he would not be recommended for confirmation in post. The Complainant was advised that he could submit an appeal to an Internal Appeals Officer, via the Personnel Officer, within 5 working days and was provided with the relevant supplementary material to guide him on this process.
Internal Appeals Process Internal appeals are carried out by trained Appeals Officer. Their primary role is to examine information provided to them by an officer in their appeal documentation, examine the probationary process to ascertain if it was carried out correctly and fairly and provide a recommendation known as an ‘advisory opinion’. The advisory opinion feeds into the submission provided to the Appropriate Authority who has the final decision on the matter having considered all the information.
The Internal Appeals Officer was appointed, her role as Appeals Officer was to examine whether the probationary process was applied fairly to the Complainant. Key areas for examination include:
The Complainant, in his submission states that he raised in his appeal the issues of how his probation had been ‘mishandled’ and how he felt he had been ‘discriminated against’ and refers to the fact that the Appeals Officer ‘didn’t take into consideration any instance which I stated was discriminatory’. It is not the role of the Appeals officer to make a determination as to whether an officer was discriminated against and there are appropriate avenues for managing issues of this nature The Appeals Officer performed her role correctly and having considered all the information, determined that his appeal was ‘unsuccessful’. The rationale for this recommendation was that:
Whilst it was noted in the opinion that records of all meetings/interactions between the Complainant and his local management were not signed by both parties, it is not the practice in the department that discussions between a manager and a staff member are signed off. This factor did not have a significant bearing on local management’s compliance with the probationary process and the Appeals Officer was satisfied that performance issues were brought to the Complainant’s attention on an ongoing basis throughout his employment.
The Advisory Opinion, together with all other information was submitted to the Secretary General, as Appropriate Authority for decision. Having considered all the information provided, the decision of the Appropriate Authority was to terminate The Complainant’s probationary contract. The Complainant’s probationary contract was terminated by letter dated 17th December 2018, his last day of service being 1st January 2019.
Disclosure of Disability:
· The Complainant completed documentation at the time of his recruitment on 29th January 2018. He did not disclose a disability at this time. He checked the box which stated there was no medical condition of which he wanted to make the Department aware of.
· The Complainant states in his claim “the line manager I had initially provided me with a reasonable accommodation in allowing me to take 5 minute breaks when I felt one was required”. This line manager has confirmed that she never gave any specific instruction that the Complainant could take breaks. However, as is the case with all staff based in the office, if there is an issue or a difficulty, for example with a customer, a staff member can step aside and take a few moments to compose themselves and then return to their duties. There is a recognition that the work of a busy public office can be challenging and it can sometimes be necessary for staff members to take time out after a difficult issue or incident. However, the line manager would apply this approach to all staff and did not consider it a reasonable accommodation provided specifically to the Complainant.
· The line manager stated that when she initially met with The Complainant “I observed that xxxx was very nervous and uncomfortable in my company. I observed how he often would wring his hands together and look down at the floor when we were talking”. She enquired about his previous work experience and he stated that his duties were to monitor social media interactions, that it was not customer facing role and that he worked on his own. It should be noted, that the Complainant’s application form to the Civil Service states that he had held customer facing roles in two previous jobs (retail and restaurant sectors). The line manager discussed the operations of the Department and how it was a public facing office.
· The line manager identified a particular project which involved the scanning of documents going back a number of years. She selected the Complainant and another staff member for this project. She did not consider this to be a ‘reasonable accommodation’, but a best use of the resources available to her and she felt that both officers were capable of completing the task.
· The line manager also encouraged the Complainant to gain experience by doing public counter work for short periods of time, particularly in the afternoon when it was quieter. She saw this as a tool to build his confidence and again, did not consider it to be a ‘reasonable accommodation’.
· The line manager also tried to assist the Complainant in settling in by talking to him throughout the day to see how he was getting on. She did not consider this to be a reasonable accommodation, but rather helping a new staff member settle in to a new role/department and would apply the same approach to all new staff members.
· Whilst no formal reasonable accommodations were requested by the Complainant, local management adopted an ongoing supportive approach with him. For example, in April 2018, when a dress code breach was brought to his attention by his manager (he was wearing a black leather jacket whilst on duty and was asked to put on a jumper) he advised his manager he had a ‘panic attack and a nose bleed’ and his leather jacket provided him with comfort. His manager, the line manager, facilitated him on that particular occasion, and also advised him of the services of the CSEAS.
· On 18th July 2018, The Complainant’s EO Manager again spoke to him in relation to his work performance and ‘constant disappearing’ from his workplace when he was required to cover these areas. The EO Manager had documented a number of instances where the Complainant was not at his post or took extended tea-breaks or was on lunch in the canteen when clocked in. She requested that he attend at a meeting to discuss these issues. When queried about where he went to when he was not at his desk, the Complainant disclosed to her that he suffers with anxiety attacks and ‘has to go to the bathroom and lock himself in’. The EO Manager empathised but also explained her duty of care to have an awareness of the Complainant’s whereabouts when not at his designated post.
· The Complainant advised her that he felt his anxiety levels had increased since the line manager had become his managers as he was being monitored and questioned about his work. He referred to other staff and questioned how they were being managed. The Complainant was advised that the Department has a lot of resources to assist employees (e.g. the CSEAS), offered personal support to him and said that he could let her know when he was having a panic attack and she would help him in whatever way she could.
· No specific reasonable accommodations were requested by the Complainant at this meeting; however, the Complainant did follow the advice of Ms. Kennedy and said he made an appointment with CSEAS.
· The Complainant was facilitated in attending the CSEAS during office hours. However, his manager noted that when the Complainant went to attend, he had an issue with the amount of time off he was given for attendance at the appointment and had an expectation that he would receive all or most of a day off.
· It was explained that a full day would not normally be required for an appointment of 1 to 2 hours duration. The Complainant was not happy with this response and queried with a colleague, who had been given time off to attend a funeral, how much time they got off for this and what kind of leave they used.
Local management did not consider this appropriate. It was a further display of the Complainant’s lack of ability to take instruction or direction.
The Assistant Principle met with the Complainant on 30th July, following a discussion with the line manager who had noticed the Complainant writing up notes on his computer. She had enquired if it was work related. The Complainant told her it was not and stated he was advised by the Employee Assistance Officer to note down any issues he had and said that he was noting down issues around bullying and harassment by his manager, the line manager:
o The Assistant Principle opened the meeting by asking the Complainant how he was, and he responded he was fine. He asked him if he wanted to discuss anything and The Complainant responded that he did not. The AP enquired as to how the Complainant was getting on in relation to the issues that were brought to his attention previously i.e. underperformance, extended break times and leaving his desk. The Complainant stated that he felt he was being bullied by reason of the fact that the line manager was ‘always going on about his work’ and referenced being told to go back to work when he was talking to a colleague at the water cooler.
o The AP pointed out that it was the line manager’s job to manage staff. He explained that there was a requirement to take tea-break for the time allotted i.e. 20 minutes, and to clock out during lunch time. He also pointed out that the Complainant was not reaching the work targets set for him with regards to scanning CSD cards. It was also explained that the role of the manager is to bring to his attention a failure to reach agreed work targets.
o The AP pointed out that the Complainant had been facilitated by the line manager (and his previous manager) in terms of a reduction of duties and that management were supporting him but he also needed to show a willingness to address issues and take direction from his manager.
o In addition to being advised by his line manager, the AP stated he had had been approached by a concerned staff member who said they overheard the Complainant in the canteen telling other staff members he was being bullied. He explained to the Complainant that the Department takes such allegations seriously and that he could not go around saying this to people (i.e. other team members and staff in the office). He advised the Complainant that if he felt he was being bullied, he should contact local HR for advice on the appropriate method and channels to deal with this.
o No specific accommodations were requested by the Complainant at this meeting and the AP confirmed his support and said his door was open to the Complainant to speak to him at any stage.
· On 30th July 2018, after meeting with the AP, the Complainant emailed his line managers (HEO and EO). In this email, he advised them that he suffered with depression and anxiety. He said he assumed his previous manager (the line manager, HEO) would have made them aware of his condition. As previously referenced, no disclosure had been made to the line manager, however, she had provided him with support in settling in. If a disclosure had been made to the line manager, as a manager, she would not have discussed this with another manager, unless expressly advised to do so by the officer so as not to breach confidentiality. He would also have been advised of the services of the Department’s Disability Liaison Officer (DLO).
· In his email of 30th July, The Complainant suggested the following which would assist him:
o Every now and then, he may need a five minute break away from his desk and people.
· No other assistance was requested in this email. However, The Complainant advised that he felt that he had been receiving ‘a lot of criticism’ on everything he did and that he was singled out and his manager was friendlier to other staff members than to him. He said he felt he was carrying out all of the tasks that were asked of him and stated that he was going to keep a log of all his work to send to his manager.
The line manager replied on 31st July 2018. In this email, the line manager advised that:
o She had not been officially informed of any illness, either physical or mental that would impact on the Complainant’s performance. She was going to contact HR division for advice.
o She provided an assurance of support but advised the Complainant that customer service was an intrinsic part of his role, and he was already assigned to ‘softer touch’ duties, and that he had been ‘disappearing’ and leaving his post a number of times a day without explanation.
o She provided an example of where she had spoken to the Complainant and another staff member about wearing headphones in the office, emphasising that the Complainant was not being singled out and also that professionalism was required in the office environment.
o The line manager pointed out that she had felt that the Complainant sometimes did not appear to engage with her, either verbally or in responding to emails, but expressed an understanding that this may be due to his declared condition i.e. he did not respond because he was anxious.
o She expressed a preference that the Complainant not keep a log of all of the tasks that he had completed but rather focus on his work and performance and integrate with the team so that they could support one another.
o She reviewed measures she had taken to-date to support the Complainant, including recommending the CSEAS with time off to attend, providing clarity on his role and duties and a reduction in his work targets. However, she noted that this had not yet had an impact and that further training would be prioritised.
o She provided assurances to the Complainant of her support and the support of his team, but reaffirmed the need to address the performance issues previously identified to him. She reassured the Complainant of a commitment to resolving issues and sought any feedback and ideas from him on this.
· A formal disclosure of a disability to the Department’s Disability Liaison Officer (DLO) was made on 13th August 2018. This was accompanied by letter from the Complainant’s doctor. The Complainant stated in his correspondence to the DLO that he was having a difficult time in work and “didn’t know how long he could cope with the environment in the office he was in”. His doctor’s letter stated that he was being treated for anxiety and depression and his condition has worsened recently and he (The Complainant) had identified his current work situation as causing him stress. His doctor asked that consideration be given to transferring him to an alternative section which might be less stressful for him. Aside from this consideration, nothing else was identified in the letter from his doctor. It should be noted that as part of his role, the Complainant worked across a number of different sections, some of which were public facing and some which were not.
· The disclosure to the DLO was made 8 months after commencing his employment. The DLO responded to The Complainant on 16th August 2018. She forwarded to him a Workplace Accommodation Form with two parts.
· Part 1 of this form asked the following questions:
o What is the nature of your disability? o Please list any supports or accommodations you may have received in education or previous employment. o Will you require the same supports or accommodations while working in this Department or Office? o Please list additional supports or accommodations you may require while working in this Department or Office.
The Complainant did not return Part 1 of the form.
· Part 2 of the form allows for completion by a medical specialist with a description of the disability and any functional limitations that an officer may have in the workplace. It also allowed for any supports or accommodations that may be required in the workplace. Whilst the form stated at the top that evidence from a GP or Family doctor is not accepted as verification of a disability, the DLO indicated in her e-mail to the Complainant dated 16th August that “a supporting letter with this information will also suffice”.
The Complainant did not return Part 2 of the form.
· The reason he gave in his complaint was that he could not get a specialist to complete same. However, as mentioned above, he was advised by the DLO, that the completion of the form by a specialist was not necessary for accommodations to be put in place and no input from a specialist was required for Part 1 of the form which could have been completed by the employee alone.
· The Complainant was advised of the services of the CSEAS again and given the details of the Dignity at Work (Bullying) policy and the contact details of the officers in HR who manage this area.
Referral to the Chief Medical Officer:
· On 1st August 2018 there was an incident in the workplace, where the Complainant had a panic attack while working on the public counter. This resulted in him suddenly leaving his work-station, which in turn required a re-organisation of staff to cover his post. His supervisor was advised that he was in the rest room and was very upset. The Complainant had previously advised his managers that he needs a few minutes for a panic attack to subside and then he can carry on. However, this did not appear to be the case in this instance.
· Following this incident, local management were concerned, firstly for the Complainant’s own health and safety in the workplace and also in relation to the disruption it caused to the office, to his colleagues and to service provision. The Complainant was offered support from from his supervisor directly after this incident, including a suggestion that he take leave and contact his GP as a matter of urgency.
· The AP subsequently advised the Complainant at a meeting on 2nd August 2018 where they discussed his recent anxiety attack that he would be recommending that the Complainant attend the Chief Medical Officer.
· The Complainant was referred to the Chief Medical Officer by HR Division (with input from local management) on 14th August 2018.
· The referral provided the following details to the CMO:
· The role of the CMO includes giving advice on the impact, if any, an officer’s health concerns may have on their ability to carry out the full range of duties. The CMO can also make recommendations on accommodations or health and safety issues that local management should be aware of so that they can take steps to reasonable accommodate the officer.
· The CMO does not adjudicate on issues which would typically relate to local management’s requirement to manage staff, IR issues.
Medical Opinion of the Chief Medical Officer
The Chief Medical Officer met with The Complainant, carried out an assessment and provided a report:
The report outlined that:
· The Complainant was fit to carry out his duties, · The Complainant had commenced a form of treatment for his condition four months previously and is waiting on further treatment; however, his treatment was not optimised considering the chronicity of his medical condition. · The Complainant reported that his activities of daily living are normal, and her opinion was that his anxiety was not of such a severity that it renders him unfit for work. · That he reported to her that an anxiety attack can be triggered by the ‘anticipation of an event and the unknown’. · The Complainant advised the CMO that he only suffered from one panic attack in the course of his work this year.
The CMO also went through each of the Complainant’s duties with him, which were documented to her on the referral form. Of the 12 duties, the Complainant said he had no issue with seven of these duties; there was one that he “found monotonous but easy”; one that “he was not a fan of”; one that he worries about but is fine if a colleague is around; one that he finds difficult and does not like; and one that he has yet to be trained up in.
The CMO provided the following advice to management:
· That management should consider supporting his learning requirements in the roles he finds challenging. · That local management should consider if a reduction in performance levels is a reasonable accommodation given his declared health condition. · That local management should continue support him in his learning requirements. · His health situation was such that she did not require any follow up appointment with him.
As the Complainant’s performance was being considered on an on-going basis, all of these supports were already being provided by local management at this point by:
However, local management had also identified and brought to the Complainant’s attention, issues with his conduct and behaviour and it was not clear what supports could be put in place to support the Complainant in addressing these issues.
Civil Service Employee Assistance Service (CSEAS)
The Complainant attended at the Civil Service Employee Assistance Service. This is a professional service which is designed to assist employees to manage and resolve work-related and personal difficulties which, if left unattended may adversely affect attendance, work performance and quality of life. While details of these discussions are confidential to the officer and the CSEAS, it is understood from the Complainant that he was not happy with the services of the CSEAS.
The Position of the Department of Employment Affairs and Social Protection
The Probationary Process: · The Complainant’s probationary period was managed in line the Department’s probationary process and in a timely manner. · Issues with the Complainant’s performance and conduct were brought to his attention on an on-going basis by a number of different managers. Issues raised included inappropriate attire; interactions with colleagues; personal phone usage at desk; errors with work resulting in a customer having to return to the office; breaks away from work/team; challenging instruction; emailing work log to personal email address and general conduct. These formed the basis of the on-going informal meetings and formal probationary reviews. · The Complainant was granted the right to appeal the decision not to recommend his confirmation in post and had the opportunity to provide supporting documentation with his appeal. He requested an oral hearing and was granted same by an Appeals Officer as part of that process. · The Appeals Officer met with the Complainant, examined the process and the information submitted by the Complainant and advised following consideration, that the appeal was unsuccessful. · The Secretary General as Appropriate Authority sanctioned the termination of the Complainant’s probationary contract having considered all the information.
The Performance Management Process: The Performance Management Development System (PMDS) was carried out in accordance with Departmental procedures. The PMDS process consists of three elements: Goal-setting; Mid-year Review; and End-Year Review
The Complainant goals were set in conjunction with local management.
At Mid-year review, it was noted that the Complainant had completed training in ‘Desk 5’, PSC and reception in the last five months. It noted that the Complainant was beginning to settle and build relationships in the office. The Complainant was assessed as being professional in dealing with customers and that he needed to ensure that he kept on engaging in training and building his knowledge in the different types of work in the office. The End-year review was carried out and it was noted that the Complainant had been assessed as unsatisfactory at his 9 month probationary review. His work was assessed as not being of the required standard and that at times, his attitude and interaction with customers and colleagues was poor. The Complainant did not acknowledge these comments in his section of the End-year review narrative and outlined what he felt his achievements in the role were.
Training: The Complainant was provided with both formal and informal training during his probationary period.
The Complainant was also directed to avail of the e-Modules on Deciding Officer and Data Protection and received on-the-job coaching and mentoring in a ‘live’ environment which is standard practice for a front-line clerical officer role in the Department.
Management of Complaint under the Dignity at Work Policy: The Complainant asserts in his complaint that he felt he was victimised. The Department is committed to protecting dignity and respect across the organisation and aims to promote respect, dignity, safety and equality in the workplace. It treats all claims of bullying very seriously and is guided by the Civil Service Dignity at Work Policy.
The policy allows for both informal and formal resolution methods with clear structures on how to manage any issues raised. The Department managed the Complainant’s allegations he was being bullied using both informal and formal processes,
Supports provided
The Department, as an employer strives to ensure the right to equal treatment and accommodate diversity. The Department is subject to the Code of Practice for Employment of People with Disabilities and has a dedicated Disability Liaison Officer. Disability awareness training is also run as a support for staff. The Department has in its employ, 6,500 staff including many staff with disabilities including mental health, hearing and sight impaired, wheelchair users, and staff with other disabilities. The Department provides reasonable accommodation where requested, such as access to premises, interpretation services, specialised IT equipment, work equipment, e.g. stand-up desks. On making his declaration, the Complainant did not request any reasonable accommodations, aside from the ability to take breaks away from his desk and people when required. This was already being facilitated.
Management in the office put supports in place not because of a request for reasonable accommodation but to enable him to settle into his role.
· A reduction in work-load
From early in his employment, The Complainant was facilitated with a reduction in work-load to assist him in settling into his role. At the time of the CMO referral made on 14th August 2018, of a list of 12 duties which formed part of his role, the Complainant was performing 4 of these duties. This training and work-load was adjusted in accordance with his performance levels and were not related to his disability (which was not disclosed until 6 months into his employment).
· Breaks away from desk and use of a quiet room
Local management had no issue with providing the Complainant with time away from his desk and/or use of a quiet room. The only requirement was that the Complainant advise his manager when he was taking time away from his post. This was to ensure that cover could be provided and also for health and safety reasons. It is not correct, as asserted in the Complainant’s claim, that his manager did not allow him these breaks - she did. However, both her and the Complainant’s EO manager and his AP Manager reasonably required an explanation if he was not at his designated post after it was noticed he was constantly disappearing from his desk.
This followed on from
· Exceptions made on occasion to dress code where ‘comfort’ was required.
The Complainant was spoken to about the need to dress in a professional manner in the office. Where the Complainant stated that the wearing of a leather jacket as a form of comfort, this was facilitated again in an effort to help the Complainant to settle into the office.
· The services of the CSEAS.
The Complainant was advised of the services of the CSEAS by four of his local managers, by the Disability Liaison Officer and by HR Division. The Complainant availed of this service but stated he did not find it useful.
Interaction with the Disability Liaison Officer (DLO) As outlined previously, the Complainant contacted the DLO on 30th July and formally declared a disability and enquired about official forms to be completed. The Complainant did not complete the relevant forms or return them to the DLO. The Complainant states in his claim “I was issued with a workplace accommodation form that I had to have completed by a specialist as the GP letter was apparently insufficient. I was unable to have this form completed as I was at the time on a waiting list to see a specialist”. However, the Complainant had been advised by the DLO in her correspondence to him of 16th August that his doctor’s letter outlining the nature of his disability would suffice. Part one of the accommodation form is to be completed by the employee alone. The Department would expect part two to be completed in due course where specialist equipment is required by a staff member so that the occupational therapy procurement staff could be advised on the type of equipment necessary
The DLO’s role is not to provide advice on workplace issues such as the working relationship between staff and their manager. They do not have any involvement in transfers within the Department. However, the DLO provided him with the relevant details of the section that deals with Dignity and Respect at Work and provided him with the policy. The DLO also provided him with information on the CSEAS.
In relation to the letter from the Complainant’s GP, the letter stated the nature of his medical condition and the DLO accepted this as confirmation of his disability. However, the letter did not give direction on any accommodations other than to ask for consideration to be given to transferring him to an alternative section which might be less stressful for him.
The Department has a formal transfer process. A request for a transfer had not been mentioned by the Complainant up until it was mentioned in his doctor’s letter, and no application for a transfer to another section had been received by the Complainant previously. However, it should be noted that the Department does not transfer officers on probation. They are generally required to complete their probation in their assigned positions to ensure consistency and structure, to provide the appropriate training, mentoring and allow staff the time to demonstrate they have the required competencies. It also allows managers time to properly assess staff. The reference to a transfer to another section made in his doctor’s letter appeared to relate to the Complainant’s interpersonal difficulties with his manager and her attempts to manage him through the probationary process as opposed to requiring a transfer as part of providing reasonable accommodation.
1. Conclusion
The Complainant was subject to clearly set out standards of performance, which were communicated to him from the outset of his employment with the Department. These standards are applied to all new entrants who are on a probationary contract and were applied fairly in the Complainant’s case.
The Complainant’s three probationary reviews were carried out in a timely manner, and issues which had already been raised with him informally on an ongoing basis, were again brought to his attention at these meetings. The standards of performance, particularly following his ‘unsatisfactory, needs to show improvement’’ rating at 6 months and the required improvements were clearly set out in his review form which the Complainant had access to. The Complainant did not appear to accept the issues which were being brought to his attention, but local management had a responsibility nonetheless to:
· raise these issues with The Complainant; · provide The Complainant with support and training; · document the issues in his probationary reviews; and · assess him accordingly.
Management made efforts to support the Complainant through training, mentoring, facilitating breaks from his desk, checking in regularly with him in relation to his well-being and advising him of the services of the Civil Service Employee Assistance Service. Attempts to provide constructive feedback to the Complainant on his performance were not received well by him, and when performance issues were raised with him, he began to indicate that he felt he was being bullied.
The Complainant stated that he was discriminated against on the grounds of disability. The Complainant did not make a formal disclosure to his local management until 30th July 2018. This coincided with his six month probationary review and attempts by local management to once again formally bring his performance issues to his attention.
The Complainant did not contact the Department’s Disability Liaison Officer until 16th August 2018, 8 months after commencing his employment. He was provided with the relevant documentation requesting him to outline any workplace accommodations he required. The Complainant did not return these forms to indicate any accommodations required by him.
The Complainant asked to be allowed to take breaks to deal with his anxiety when required. The primary reason why local management became aware of his need to take breaks in the first instance was due to his consistent habit of absenting himself from his post. When this was brought to his attention, he stated that he needed to take breaks when he gets anxious and that he sometimes needed five minutes away and then he was fine. The only requirement management had was that he advise one of his managers when he was taking these breaks.
The Complainant suggested that he was being bullied in July 2018. This coincided with receiving an ‘unsatisfactory, needs to show improvement’ rating at his 6 month probationary review. The Department takes allegations of bullying very seriously and he was advised by local management to seek advice from HR Division. At that time, he stated that he wanted the issue addressed locally and did not wish to make a formal complaint. He confirmed this in writing to the Assistant Principal. After stating this, he requested information from the Disability Liaison Officer and HR Division on the Dignity at Work Policy and was provided with this information and telephone advice. However, he again confirmed to HR Division that he did not wish to make a complaint.
The Department has supports and services in place to assist its staff. The Complainant was referred to the Employee Assistance Service, but by his own admission, did not find them helpful. The Complainant was also in touch with the Disability Liaison Officer who asked him to outline what accommodations he required. He did not avail of this service either and did not return the forms to the DLO. The Complainant also attended at the Chief Medical Officer, and whilst stating he had anxiety, no specific accommodations were raised, and he stated he liked some tasks more than other but felt happy that he could carry out his duties.
The Complainant was advised that he was not recommended for confirmation in post on 6th November 2018. Following an appeal process, he was advised his probationary contract would be terminated on 17th December 2018. On 17th December 2018, the Complainant submitted a formal bullying complaint against his manager. As he took sick leave, annual leave and the office was closed for some days over the Christmas period, the Complainant effectively submitted the formal bullying claim whilst being aware that he would not be back in the office prior to his termination date.
Notwithstanding the above, the Complainant’s allegation was assessed, and a copy of his complaint was provided to his local manager to afford her the opportunity to respond. The Dignity at Work policy clearly states that it is the duty of management to address the performance, attendance and conduct of all staff. The Personnel Officer was satisfied that the line manager’s management of the Complainant’s performance was constructive, backed up with clear facts and was communicated in a reasonable manner at all times. The allegations did not constitute bullying or harassment under Section 3 of the Dignity at Work policy.
The Complainant was made aware from the start of his employment of areas where he was doing well and areas in which he needed to improve. His management put considerable effort into ensuring that he settled into the workplace and felt supported.
However, from the outset The Complainant appears to have taken exception to attempts by local management to provide with him with feedback and/or constructive criticism on what was necessary to reach the required standards of performance. He was reluctant to take instruction, and in addition, on a number of occasions, as evidenced in this brief, he displayed anger towards his manager resulting in him raising his voice and swearing. He also displayed, on more than one occasion, a poor attitude towards customers, who are the key stakeholders of the Department. This was evidenced when he referred to a customer as “dopey” and referred to colleagues as “scummers” in front of a customer. These incidents were reported to his manager.
Performance issues continued after his 9 month review and up to and including his last week in the office. These included a data breach in November 2018, which had to be reported to the relevant section in the Department. In December 2018, a staff member approached the line manager, after the Complainant has been advised that his appeal was unsuccessful. The staff member advised the line manager that the Complainant had stated that “he had nothing to lose now” and was “going for the jugular” with his claims and that the line manager and AP would lose their jobs for what happened with his probation. A note of these incidents and two others relating to annual leave and sick leave in the month of December were documented by the line manager.
The Department would contend that there is an onus on an employee to engage in any discussions around reasonable accommodation.
The Complainant’s probationary contract was terminated as he was unable to perform to the standards required of the role and his conduct and behaviour to colleagues and customers. He was advised of this throughout his probationary period and given all the supports necessary to address these issues.
Legal Submission.
Preliminary objection on the admissibility of covert recordings.
The Complainant is relying on transcripts of covert recordings made by him of conversations with his employers. The Department objects to its admissibility. It is submitted that the use of covert recordings as evidence by the Complainant is underhanded and ought to be excluded. Neither of the two persons who are identifiable on the transcripts gave their permission for the recording and it is an interference in their human rights and freedoms. This is a breach of Data Protection Law as the Complainant in recording, storing and now processing the data is acting as a “Data Controller” and has unlawfully processed information in relation to the “Data Subjects” who are clearly identifiable.
The Department’s position on the Complainant’s case
Without prejudice thereto, the Department refutes all allegations of discrimination. Moreover, it does not, in fact, accept that the Complainant has a disability in the first place.
With regard to the Complainant’s claim of discrimination on the grounds of disability, the Department contends that, at all times up to his last day working in the office on 17th December 2018, he was certified as fully fit to work. It was further submitted that he was not, therefore, under a disability and consequently could not have been discriminated against, victimised or harassed on that account as contended in his complaint. The Department also submits that the issue of reasonable accommodation, equally, does not arise.
Section 85(A) the Employment Equality Act 2004
It is also submitted that as per Section 85 (A) of the Employment Equality Act 2004, the Complainant must establish facts from which it may be presumed that discrimination has occurred. It is submitted that it is a prerequisite to his being successful that there be some primary facts upon which he relies to ground his allegation of discrimination. These cannot be mere speculation or assertions, unsupported by objective evidence.
First of all, it should also be noted that the Complainant specifically stated that he had no disability on his application form.
It is submitted that a careful reading of the doctor’s letter, which was belatedly produced several months into his probation period, discloses that it does not set out that the Complainant has a disability that affects his ability to work; rather it indicates that it is not the work that is in issue, but the Department he is working in which is causing him “stress”. There are no “reasonable accommodation” requests contained in this letter.
It is submitted that when the Complainant belatedly sent in this information, putting the Department on notice of his attendance at a doctor relating to “stress”, all steps were taken both informally and formally to address any issue he might have had as a result of working in that Department.
C.M.O referral
After an episode in the office, the Complainant was sent to the Chief Medical Officer (herein referred to as the “CMO”) for review and to establish if he was fit to work in the Department. This referral contained a list of all the duties that would be expected of him as a Clerical Officer. It is noteworthy that the CMO indicates that the Complainant asserted that he had only had one episode in his employment up until that time as a result of which he would require to be away from his desk and further that he is “fit to work”.
It is submitted that as the Complainant was “fit for work”, no reasonable accommodation was necessary.
Section 16 (3a) of the Act, provides that an employer must provide “appropriate measures” to allow the person access to employment, to participate or advance in employment, provided it does not place a disproportionate burden on the employer.
It is submitted that it must be the case that an employee is not fully competent and/or capable of undertaking their duties before an obligation to provide appropriate measures or reasonable accommodation arises. The Complainant was at all times fit to carry out duties, so the issue of reasonable accommodation does not arise. In addition, the Department submits that even if it was the case that the Complainant was suffering from a disability, he never sought or identified the accommodations that he contends should have been put in place.
Disability Liaison Officer (DLO) The Complainant was contacted by the Disability Liaison Officer (DLO) to complete the form to set out what accommodation he required and he failed to do so. It was open to the Complainant to have done that and to specify the accommodations he might have required at any stage, but he did not do so.
In so far as the Complainant now asserts he was taking five minutes breaks when he felt unwell (which he says his previous Manager allowed him to do; this assertion being contradicted by his account to the CMO, who reports that he said that this only happened on one occasion), that is not evidence of an accommodation allowed to him on the basis of a disability. That allowance is provided to all staff if they are unwell or if they have dealt with a difficult customer. Indeed the Department has a relaxation room which has a bed in it for staff for this very purpose. The Complainant was treated with the same dignity and respect as all staff of the Department and was not treated any differently.
It is submitted that the Complainant has failed to assert the basis on which he is entitled to pursue a claim under the Acts and/or on which primary facts he is relying in alleging discrimination.
Medical definition of disability. The Employment Equality Acts 1998-2011 adopts a medical definition of disability. It is noted that this also includes past, future and imputed disability.
It is submitted that where the matter of disability is in dispute, the court generally relies on medical evidence. In Maloney v MJ Clare & Sons LtdDEC-E2010-140, the complainant, who was profoundly deaf, had sustained injuries and what was described as ‘psychological scarring’ as a result of a fall from a roof. The Equality Officer found that in the absence of the GP being available to give evidence, there was no explanation as to how ‘psychological scarring’ could be deemed as a disability.
In Worker v Food ManufacturerDEC-E2010-187, the Equality Officer said, in rejecting a claim for disability:
‘No evidence whatsoever, either in the form of a meaningful medical reports from relevant specialists, or the complaints GP, was adduced to prove that the complainant is disabled within the meaning of the Acts”
It is submitted that the Complainant’s GP’s letter dated 7th August 2018 ought not be considered as a “meaningful medical report” as it does not state that the Complaint has a disability but merely states that “Mr. XXXXXXX is under [his] care for anxiety and depression” and goes on to state that “his current work situation is causing him stress”. That is not sufficient to make out a disability.
Without prejudice to the foregoing, the Complainant was requested to return the “workplace accommodation” form, which was emailed to him on 16th August 2018, which contained two parts; the first part was to be completed by him and the second part was to be completed by a medical specialist, or to simply provide “a supporting letter containing this information”. He has continuously failed to do for both parts of this form. He has therefore not shown that he has a disability.
The Claim for alleged Discrimination
Section 77 of the Employment Equality Act, 1998.
To ground a claim for discrimination on the grounds of disability, the complainant has to be able to compare himself to a person without a disability or to a person with a different disability.
It is submitted that the Complainant can show no such comparator or of his being treated any less favourably.
“Disability” is defined in the Employment Equality Act 1998, s. 2(1) as follows:
a) The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body. b) The present in the body of organisms causing, or likely to cause, chronic disease or illness c) The malfunction, malformation, or disfiguration or a part of a person’s body, d) A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or e) A condition, illness or disease which affects a person’s though processes, perception of reality, emotions or judgments or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
Burden of Proof
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
In deciding on this complaint, therefore, the Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
Complainant was not capable of performing his duties
Section 16(1) of the Employment Equality Act re-enacts with amendments s.13 of the 1977 Equality Act and provides that an employer is not required to recruit, retain, train or promote a person who will not, or is not available to carry out the duties of a position or will not accept the conditions under which the duties attached to a post are to be performed or who is not fully competent to carry out the duties concerned. This section provides a complete defence to a claim of discrimination on the disability ground where the employer formed a bona fide belief that the complainant was not fully capable of performing the duties for which he was employed.
Even if it were accepted that the Complainant was under a disability (which it is not), the only reasonable accommodation that he sought was the occasional break for five minutes if he felt a panic attack coming on.
It is submitted that this reasonable accommodation was being afforded to him (and afforded to all members of staff if they did not feel well) notwithstanding he did not return part 1 of the “workplace accommodation form”. The only condition attached to that allowance was that he inform his manager so that she be aware of his whereabouts from a health and safety prospective and be able to manage the staff cover.
The Complainant was given fair notice that his performance was not satisfactory, which would ultimately lead to his not being engaged by the Respondent following the end of his probation period, and he was given a fair opportunity to influence any decision.
Appropriate Measures
Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties.
The Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC63 has provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts. In this judgement MacMenamin J. held that:
“Finally, it should be noted that the Court of Appeal found that there was no justification for the rule outlined in the Circuit Court decision of Humphries v. Westwood [2004] 15 ELR 296. In Humphries, Dunne J., then a judge of the Circuit Court, held that, in order to form a bona fide belief that a claimant was not fully capable of performing the duties for which she was employed, a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability, and its duration. If it was apparent that the employee was not fully capable, the respondent was required, under s.16(3), to consider what, if any, special treatment or facilities might be available, by which the employee could become fully capable, and account was to be taken of the cost of such facilities or treatment. But Dunne J. went on to hold that such an enquiry could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level, and, on the facts of that case, to present relevant medical evidence, and submissions ….. Ryan P. considered Humphries in the light of subsequent English case law …. In his view, a statutory duty was “objectively” concerned with whether the employer complied with an obligation to make reasonable accommodation. In this State, however, our courts have always attached importance to fair procedures where employment is at stake …. I respectfully disagree with the Court of Appeal's conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act”.
In essence, the Supreme Court in this judgement has held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act.
It is respectfully submitted that the Respondent has engaged with Section 16 of the Act, by informal meetings, email correspondence and through the Disability Liaison Officer who sought the Complainant to return the form to her setting out what reasonable accommodation he required, which he did not do. It ill behoves the Complainant to seek to criticise the Respondent for his inaction, or to mount a claim based on an alleged disability which, entirely due to his own acts and omissions, he never substantiated. He was an active participant in this process and failed to make out any claim that he had a disability.
The onus is on the complainant to support an application for Reasonable Accommodation.
The onus is on the complainant to substantiate an application for reasonable accommodation, with medical or other appropriate evidence outlining the reason for the accommodation and the accommodation required to enable the complainant to be fully competent and capable of undertaking the duties of the position. When an employer has received such a report they can also seek medical advices.
No such information was provided by the Complainant’s GP in relation to an accommodation. His GP did suggest that [the Respondent] consider transferring him to an alternative section which might be “less stressful for him”.
It is respectfully submitted that this does not seek “reasonable accommodation” or a change in work to facilitate disability but rather seeks only to be moved from the current section i.e. no longer under the management of his line manager, not for any reason attributable to a disability.
As more particularly set out in the factual submissions, the Respondent referred the Complainant to the CMO to see if he was fit to work, as there had been an episode in work. This referral sets out in detail the work that the Complainant had as part of his role and the CMO confirms that the Complainant was fit to be at work.
The Complainant was provided with numerous supports and failed to engage with the Disability Liaison Officer (DLO) who contacted him asking him to complete his “workplace accommodation form” which he did not do. It is submitted that the Respondent acted appropriately at all time, had the proper supports and policies in place, and facilitated the Complainant with breaks if he was not feeling well (in exchange for notifying his nearest manager).
Discrimination is a comparative term.
Discrimination is defined as less favourable treatment. A person is said to be discriminated against if they are treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds mentioned above. Indirect discrimination occurs when practices or policies that do not appear to discriminate against one group more than another actually have a discriminatory impact. It can also happen where a requirement that may appear non-discriminatory.
Discrimination is always a comparative term. It is respectfully submitted that a complaint cannot succeed as he has not shown that someone else was or would have been treated better because of a disability. This is a fatal flaw in his claim.
Comparators
The Complainant has not provided comparators in furtherance of his claim of discrimination. In order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that she was treated less favourably as compared to another person in a similar position.
Section 61 of the Acts states that:
“ For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated “.
With regard to discrimination on the grounds of disability, Section 6(2)(g) states that: “As between any two persons, the discriminatory grounds (and the description of those grounds for the purpose of this Act) are - that one is a person with a disability and the other either is not or is a person with different disability “
From the evidence presented by the Complainant, he has not identified a comparator who was treated more favourably than he was in the circumstances.
Conclusion
It is submitted that, on a review of the notes and correspondence adduced by both the Complainant and the Respondent there were ongoing issues. However, it is submitted that these issues were as a direct result of the Complainant’s own behaviour and/or work performance. The correspondence that has been provided relates to both his direct manager, and other members of the management team.
It is submitted that the focus of these meetings was primarily supportive and developmental as opposed to being punitive or negative in nature.
In summary, the Respondent rejects in the strongest terms the claim that the Complainant’s contract was terminated by reason of his disability. The Complainant’s probationary contract was terminated as he was unable to perform to the standards required of the role and his conduct and behaviour to colleagues and customers. He was advised of this throughout his probationary period and given all the supports necessary to address these issues.
It is submitted, that taking all of the above into consideration, there is no evidence to suggest that acts of discrimination, as contended, took place. Therefore, it is respectively submitted that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability.
|
Findings and Conclusions:
The Labour Court in Connacht Gold Co-Operative Society V A Worker (EDA 0822) took the view that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employee’s disability. The Labour Court’s thinking is very much in line with the House of Lords (Lewisham London Borough Council v Malcolm [2008] UKHL 43 in which it was established that in order to establish unlawful discrimination on grounds of disability, it was necessary that the alleged discriminator had knowledge, or at least imputed knowledge, of the Complainant’s disability. In the instant case it is clearly established that the Respondent had no knowledge of the Complainant’s disability until two months into the employment relationship. I also note that the Complainant, in his Personal Details form when asked the question – “Do you wish to advise the Department as your employer of any medical condition that you have that may require special care or attention by local management” The Complainant answered NO. Representative for the Respond argues that to ground a claim for discrimination on the grounds of disability, the Complainant has to be able to compare himself to a person without a disability or to a person with a different disability. It was submitted by the Respondent that the Complainant can show no such comparator or of his being treated less favourably. I have to accept that no comparator was established / identified during the hearing of the complaint. New entrants to the Civil Service are recruited on a one-year probationary contract and subject to three formal probationary reviews at 3, 6 and 9 months. Local management also have the right to hold meetings at any time outside the formal review meetings to discuss performance. During the probationary period, officers are formally assessed by their local manager to determine whether they:
· have performed in a satisfactory manner; · are satisfactory in general conduct, and · are suitable from a viewpoint of attendance and sick leave.
All new entrants and their managers are reminded of these obligations on a number of occasions throughout the probationary period - in the contract of employment, at initial assignment and at 3, 6 and 9 months.
I have provided a comprehensive summary of the Respondent’s management of the probationary period of 12 months and on examination of same I cannot fault it. The assessment after three months is “Satisfactory”, the assessment after six months is “Unsatisfactory and needs to show improvement”. After 9 months the assessment is “Unsatisfactory”.
It should be noted that at the six months assessment the following comment was included:
At his 6 month review meeting XXXX was informed that his rating would be unsatisfactory due to a number of on-going issues which he had been spoken to about previously. Performance issues about the quantity of work and some quality issues. He doesn’t respond well to instructions from supervisors and he is not supporting his team. There have been issues with clocking in and not starting work, not clocking out at lunch and extended tea breaks. He has disappeared from his post several times a day with no explanation. He has not progressed in his role and duties. In order to support and help XXXX perform better and achieve his goals he will have a training plan set up, so he can fully embrace the role of CO in the office to cover all duties and desks. XXXX will own his work and be given clear guides on the quantity and quality standards he needs to meet to achieve the goals as set by his plan. When experiencing any health / anxiety issue he will inform his supervisor and take a 5-minute break in the rest room. XXXX will be given support and training and will receive ongoing feedback about how he is progressing. If he embraces the support and applies a positive attitude he can achieve a satisfactory rating.
Prior to this formal review the Complainant met with his line manager, by email dated 20th July 2018 she wrote to him and clearly states:
For clarification for you, here is a re-cap on the points I raised I relation to your Performance Management and the improvements required and agreed by you in relation to your duties and role.
Five duties were identified and listed.
This email ends with – The areas where improvement is required are: · It is not acceptable to disappear for 15 – 20 minutes several times a day without informing your line manager. · At all times breaks are twenty minutes in the morning and when you go to the canteen at lunch time it is imperative that you are clocked out on Time and Attendance. Adherence to the flexi guidelines is incumbent on all staff as part of our PMDS. · The protocol in this office when you receive an email from Senior Management in relation to work related issues is that you respond to the email. · Colleagues and Customers are to be treated with courtesy and respect.
Within the space of two weeks the Complainant received this email following a meeting and attended his 6 month performance assessment. It became very clear what he had to do to improve his performance to a level of Satisfactory. His future was very much in his own hands.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
I can find no evidence that would suggest that a prima facie case has been established and it is against this background that I decide that the complaint as presented under the Employment Equality Act,1998 is not well founded.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
As outlined above. |
Dated: 23rd March 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
|